In July 2011, a lawyer I knew who did pro bono legal aid for undertrials in Tihar Jail mentioned a case to me that she was working on. I found the details so shocking that a few days later I found myself in the Saket court room of a metropolitan magistrate, seated next to the lawyer, Suma Joseph of the Human Rights Law Network.
Her client was 19, built like an even younger boy, with hollow eyes and tired legs. He asked the magistrate if he could sit until his case came up and she said no. Half an hour later his case was up. Ms Joseph told the magistrate he was changing his ‘not guilty’ plea to a ‘guilty’ plea.
Yes, he was now willing to say, he did steal a wallet with Rs 200 in it, and it wasn’t his own. Within minutes, the judge had convicted him and ordered his release.
The sentence was for just three months – but he had already spent a year behind bars, unable to pay the Rs 10,000 bail bond the judge had previously set.
It would take a few more days before the Tihar authorities would release him and he could return to his hometown in Uttar Pradesh for his father’s last rites, but one year after his arrest, only after admitting to a crime that he still maintained to Ms Joseph and me that he did not commit, Shamsuddin was finally free.
I reported his story then for The Times of India in Delhi, but it came back to me on Monday evening when news of Prashant Bhushan’s sentence by the Supreme Court for contempt of court emerged and, with it, much mirth and memes about the Re 1 fine imposed by the apex court.
"“[B]y showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of..Rupee one.” " - The Supreme Court’s judgment on sentencing in the Prashant Bhushan case, 31 August 2020
Amidst all of the grandstanding that the Supreme Court has indulged in in this case, that word stood out – “magnanimity” – because it is precisely that which the most marginalised people in the country who are forced to tangle with India’s legal system never get to experience.
Legal Costs Affect the Poorest More
First, accessing justice has costs that would deter many and could prove ruinous for those forced to engage with the legal system.
In a 2015-16 survey of nearly 10,000 litigants across the country, the legal advocacy group Daksh found that in a sample where the median annual income was just over Rs 1 lakh annually, the average civil litigant spent Rs 497 per day on court hearings and incurred a loss of in wages of Rs 844 per day.
Criminal litigants spent Rs 542 per day for court hearings on average and incurred a cost of Rs 902 per day due to loss of pay. The poorest litigants incurred the greatest costs, proportionate to their incomes - they expected to spend a tenth of their annual income on the case they were currently fighting. Costs again were the biggest deterrent against filing appeals, they told the Daksh surveyors.
The Deck is Stacked Against the Poor & the Marginalised
Then there is simply the inability or unwillingness to apply judicial mind when dealing with the poor and marginalised. Along with Shamsuddin’s case, HRLN was at the time handling 17 other cases of petty theft where the accused was 18-22 years old and had been behind bars for over six months awaiting trial in cases of petty theft; most had been granted bail but could not be released as they could not afford the bail bond.
The Daksh study found that the inability to afford to post bail was the chief reason that those eligible for bail were unable to avail of it. Despite having the discretion to change the bail terms for poorer litigants, many judges appear to simply not care or fail to apply their minds.
This lack of access to proper pre-trial support packs our jails with the poor.
Undertrials make up 70% of India’s prison population; as of 2019, India had over 3.3 lakh undertrial prisoners, a quarter of whom had been incarcerated for over a year. Muslims, Scheduled Caste and Scheduled Tribe persons are over-represented among both undertrials and convicts. Most of India’s prison population is poorly educated, and likely poor.
We know this to be true when it comes to death penalty jurisprudence as well; the National Law University Delhi’s Death Penalty India report found that three out of four of those who were given a death sentence were economically vulnerable, according to their occupation and landholding.
When then-Delhi High Court judge Justice S Muralidhar and Justice Mukta Gupta in 2014 dispatched a Probation Officer to the Bihar village of Bharat Singh, a 64-year-old man who a Delhi trial court had given the death penalty – and then after considering his poverty and other circumstances decided he could be reformed by a life in prison, it hit the headlines precisely because it was so unusual for judges to actually consider what a life of hardship can mean.
Serving a Jail Term Isn’t Enough for the Poor
Money can prove a barrier even after a convict has served her bail term. At the end of 2019, there were over 1,000 people across the country who were in prison because they could not pay the fine amount that could have ensured their release, according to National Crime Records Bureau statistics.
Half of them had already been incarcerated for more than six months since the date that they could have been released, a statistic that makes jokes around the Bhushan fine rankle particularly.
Will the ‘Magnanimity’ be Extended to Those Who Need it Most?
When Shamsuddin and I stood talking in the lobby outside the court room that had just convicted him in 2011, the constable who was taking him back to Tihar jail told me, “Tell him not to do such things again.”
Again, the boy repeated to me, “Didi, I did not steal that wallet. I really did not.” In court, he and his lawyer had agreed to enter a guilty plea as he had already served a prison term longer than the sentence. In the eyes of the court, however, he had just admitted his guilt.
When our justice system weaponises poverty, an admission of guilt can be your only escape, and lofty notions of truth, honour and justice that the Supreme Court believes that it was dealing with in the Bhushan case become meaningless.
So when the SC decides to impose a Re 1 fine to make a point but also demonstrate its magnanimity, forgive me if I’m neither awed nor amused.
India’s poorest and most marginalised will often demonstrate moving commitment to the legal process – always showing up on time, dressed and behaving respectfully and with all of their carefully saved documentation flattened into a plastic bag clutched to their persons.
If the court want to extract respect for themselves, they could consider showing their “magnanimity” to these people – by considering the poverty of accused persons as a mitigating circumstance, by treating them with respect in court despite their befuddlement, and by choosing them to impose these token fines and bail bonds on.
Because the system as it works right now should scandalise us.
(Rukmini S is an independent data journalist based in Chennai. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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